Introduction to the Scottish Law of Property

Introduction

The law of property in Scotland descends directly from that of ancient Rome and so has much in common with that of other Civilian jurisdictions in Europe and elsewhere. Ownership of property is a real right (ius in re), which is to say a direct legal relationship existing between a person and a thing. This real right is distinct from a mere personal right (ius in personam) which is a right corresponding to an obligation on another person, such as a debt or other contractual obligation.

As in other Western legal systems, the private ownership of property is a defining feature of the law and culture of Scotland. The law will uphold this right and assist the owner in preventing others from interfering with it. Indeed, ‘the freedom of property’ is a phrase commonly used to describe the cardinal principle that an owner has an extensive right of dominium over his or her property. This freedom is now guaranteed by Article 1 of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms.

Classification

There are three ways in which property can be classified. The first and most important distinction is between heritable and moveable property. Heritable property (or heritage) is essentially the ownership of land, and other rights and interests relating to land. Moveable property (or moveables) is anything else. The important principle here is that inaedificandi solo, cedit solo: anything which is built on the land is part of the land. It is a principle of Scots law that one cannot separate the ownership of buildings from the ownership of the ground upon which it is built (although there are exceptions to this). Second a distinction can be made between corporeal and incorporeal property, Corporeal property is that which has a physical, tangible form, whereas incorporeal property exists only in a more abstract sense. Incorporeal property obviously includes intellectual property rights, but it is not restricted to such rights. As in Roman law, the paradigm example of incorporeal property is a debt. The third distinction is of limited significance. An item of fungible property (a fungible) is something of a generic type, which can be replaced easily by another substantially similar item of property of that same type. Non-fungible property is not capable of substitution in this way; it is a more specific property right.

Creation and Dissolution of property rights

Creation

There are three ways in which ownership of a piece of property can be acquired: by original acquisition; by derivative acquisition; and by prescriptive possession.

Original acquisition is where an entirely new proprietary right has been created. This can occur in one of two ways. First, the res might have been res nullius, owned by nobody. The second type of original acquisition is where a new res has only just came into existence. Far more common than original acquisition is the derivative acquisition of property. This occurs when ownership passes from one person to another, i.e. where property is transferred between A and B.

Prescriptive possession is probably the least common means of acquiring ownership. Where a person has been in peaceful possession of property for either ten or twenty years (depending on the type of property right involved) without challenge or interruption, he is deemed to be the owner of it.

 

Dissolution of property rights

There are three main ways in which the property right existing between an owner and a thing can be dissolved: by destruction, by disposition and by prescription. Where an item of property is destroyed, for example by its irretrievable conversion into another item of property, then the owner’s real right over it comes to an end. Property rights can also be dissolved by disposition. Therefore where A transfers his real right to B, A no longer has any property right with respect to the res. The third way in which property rights can come to an end is by prescription.

Transfer of Property

Derivative acquisition of property rights occurs where there has been a transfer of property rights from A to B. This means that B becomes the owner of property which previously belonged to A. Such a transfer may be voluntary or it may be non-voluntary. Much of the law of property concerns the various rules relating to the transfer of different types of property, and in different ways. Two of the most important rules are the principles of traditio and nemo dat quod habet. Transfer of property can either be voluntary (i.e. by donation) or involuntary (e.g. succession).

Heritable Property

Scots law distinguishes between heritable property (heritage), which is the ownership of land, and moveable property, which is everything else. This section shall describe the system of land tenure in Scotland and how it operates. It must be remembered throughout that inaedificandi solo, cedit solo: that which is built on the land is part of the land. Therefore, when one refers to the ownership of a piece of land, one necessarily includes within that concept the ownership of any buildings or structures upon that land, and indeed anything fixed or attached to them. Within this section there will be consideration of the history of the Scottish system of land tenure, and of ownership, sale and transfer and jura in re aliena.

 

Moveable property

Possession

Possession is where a person detains or holds property under his direct physical control or on his premises. However, possession also contains an element of intention (animus possidendi), which distinguishes it from mere custody. The animus possidendi is where the person in custody of the property knows and intends that he is holding the property for his own benefit. Where there is detention of property but no animus possedendi, there is no possession but merely custody. The custodian holds the property on behalf of someone else, and it is that person who is said to be in possession of the property. Natural possession is actual possession; i.e. where there is a confluence of physical detention of property and animus possedendi. Civil possession is where the ‘possessor’ does not hold or detain the goods himself, but they are held to his order by his agent or employee who acts as custodian. Of importance to an examination of moveable property are the concepts of ownership, delivery and securities.

Incorporeal Property

Incorporeal property is defined as that property which has no corpus or body - in other words, it has no physical form. It is therefore comprised of different types of rights, and the category of such rights is wide and potentially diverse. There are three main sub-categories of these rights: ‘real’ incorporeal property rights; ‘personal’ incorporeal property rights; and intellectual property rights.

This discussion will focus on those incorporeal property rights capable of ownership in their own right. Accordingly the ‘real’ incorporeal property rights (which are jura in re aliena) will not be examined; these rights have already been discussed above in the context of heritable property. For the purposes of this section, the term ‘incorporeal property’ will be used to denote ‘personal’ incorporeal property rights and intellectual property rights, as they are both jura in re propria.